White Lake Imp. Ass'n v. City of Whitehall

• Decision Date: 27 February 1970
• Docket Number: Docket No. 5223,No. 3,3
• Parties: , 1 ERC 1383 WHITE LAKE IMPROVEMENT ASSOCIATION, a non-profit Michigan corporation, Plaintiff-Appellant, v. The CITY OF WHITEHALL, a Michigan municipal corporation, and Whitehall Leather Company, Division of Genesco, a Tennessee corporation, and the following named agents of Whitehall Leather Company: Ernest Stein, General Manager, Kenneth Folger, Tannery Manager, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 473

177 N.W.2d 473

22 Mich.App. 262, 1 ERC 1383

WHITE LAKE IMPROVEMENT ASSOCIATION, a non-profit Michigan

corporation, Plaintiff-Appellant, v. The CITY OF WHITEHALL, a Michigan municipal corporation, and Whitehall Leather Company, Division of Genesco, a Tennessee

corporation, and the following named agents of Whitehall

Leather Company: Ernest Stein, General Manager, Kenneth

Folger, Tannery Manager, Defendants-Appellees.

Docket No. 5223.

Court of Appeals of Michigan, Division No. 3.

Feb. 27, 1970.

Released for Publication June 5, 1970.

A. Winton Dahlstrom, Whitehall, for plaintiff-appellant.

R. Burr Cochran, Muskegon, for City of Whitehall.

William T. Kerr, Landman, Hathaway, Latimer, Clink & Robb, Muskegon, for defendants-appellees.

Before HOLBROOK, P.J., and R. B. BURNS and LEVIN, JJ.

LEVIN, Judge.

The fight against pollution of natural resources has in recent times become a cause ce le bre. ¹ Along with the increasing recognition of the importance of this effort, there has developed a feeling of futility when confronted with the overwhelming array of vested interests which are the often adventitious polluters. ²

In this case a nonprofit conservation association is attempting to eliminate the pollution of White Lake. It is undisputed that both defendants, the city of Whitehall and Whitehall Leather Company, discharge improperly treated municipal and industrial wastes into White Lake.

The plaintiff, White Lake Improvement Association, is a nonprofit membership corporation organized under the laws of this State in 1951. There are approximately 414 members of the association, many of whom own land bordering White Lake. ³ The association itself owns no land. The stated purpose of the association is to prevent the pollution of White Lake, to promote cleanliness and good sanitary conditions around the lake and the public welfare of the area.

The complaint seeks the abatement of the nuisance caused by the materials the defendants dump and injunctive relief. The trial judge granted accelerated judgments dismissing the action on the ground that the association had no standing to complain. He also ruled that the Water Resources Commission Act ⁴ provides the exclusive remedy against municipalities. This appeal presents the issue of the scope of the association's remedies to prevent the continued eutrophication of White Lake.

The Water Resources Commission Act contains a comprehensive procedural and substantive framework for the elimination of water pollution. Originally enacted in 1929 and frequently amended, ⁵ the act underscores the public policy of this State expressed in the Constitution of 1963, art. 4, § 52:

'The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.'

On October 16, 1968 (subsequent to the filing of the complaint in this action on June 29, 1967 and the final judgment on February 20, 1968), the water resources commission entered into an agreement with the city of Whitehall which, by stipulation of the parties, is part of the record on appeal. The city agreed to complete by October 1, 1972 a sewage treatment facility which fulfills specifications in the agreement. On December 5, 1968 a similar agreement was entered into between the commission and Whitehall Leather Company; the completion date is December 1, 1971.

The association suggests that the efforts of the water resources commission have been futile due to understaffed offices, insufficient funds and political pressures. Its brief filed with our Court asserts:

'No citizen of Michigan today can feel very secure against the devastating effects of water pollution by simply reading Act 245 and kidding himself into believing that 'the law' as stated in the Act will somehow cure the problem. It hasn't cured the problem--and we've had the law since 1929.'

The association says that only in the courts can it obtain meaningful relief. ⁶ Further, it asks us to overrule the universally accepted doctrine that only one who suffers harm different in kind from that suffered by the public generally may maintain an action for the abatement of a public nuisance. ⁷ While we recognize that the standing of nonprofit corporations to challenge proposed action of an administrative agency has been recognized, ⁸ no case has been cited where a court has, even for a clearly publicly motivated group, made an exception to the 'different in kind' standing requirement which for so long has been a feature of the law of public nuisance. Be that as it may, there is no need to address ourselves to this sweeping claim of the plaintiff association in order to decide this case.

For reasons which we will now relate, we have concluded that the association had the necessary standing to commence this action to abate a private nuisance and that the act does not provide an exclusive remedy. We, nevertheless, affirm the judgment dismissing the complaint because we have also concluded that the defendants are correct in their contention that primary jurisdiction of this controversy is now in the commission.

I. The Association has Standing to Maintain this Action

Although we affirm the trial judge's dismissal of the complaint, we think that the plaintiff association is entitled to have its right to maintain this action clarified. The doctrine of primary jurisdiction does not preclude civil litigation; it merely suspends court action. The association may be entirely justified in proceeding with this litigation after it pursues its administrative remedy before the water resources commission.

'The doctrine of primary jurisdiction * * * governs only the question whether court or agency will Initially decide a particular issue, not the question whether court or agency will Finally decide the issue.' (Emphasis by author). 3 Davis, Administrative Law Treatise, § 19.01, p. 3.

'Court jurisdiction is not thereby ousted, but only postponed.' United States v. Philadelphia National Bank (1963), 374 U.S. 321, 353, 83 S.Ct. 1715, 1736, 10 L.Ed.2d 915.

A nuisance may at the same time be both a public and private nuisance. ⁹ Thus, with out deciding whether the pollution of White Lake constitutes a public nuisance ¹⁰ and whether the plaintiff association has standing to complain of a public nuisance, if the pollution of White Lake constitutes a private nuisance the association can maintain this action if it has the necessary standing to commence an action for the abatement of a private nuisance.

Where a private nuisance affects water, a riparian land owner may commence an action for its abatement. ¹¹ True, the plaintiff association owns no land, but its sole purpose is to represent the interest of its members, many of whom are riparian land owners, in preventing the pollution of White Lake.

No constructive purpose would be served by requiring the members of the plaintiff association who are riparian owners to maintain this action individually and thereby require that they seek in some other fashion financial and other support from the other affected land owners. Additionally, allowing the land owners to associate together for this purpose may avoid a multiplicity of suits; the difficulties that are likely to be encountered where there are a large number of plaintiffs are all too familiar to anyone who has had experience in such litigation. The most expedient way for the riparian owners to obtain a determination on the merits is to allow them to combine and join together for this purpose with others of a like interest under a single banner both before and at the time of suit: 'The only practical judicial policy when people pool their capital, their interests, or their activities under a name and form that will identify collective interests, often is to permit the association or corporation in a single case to vindicate the interests of all.' ¹²

The purpose of the rules of law which limit the persons who may maintain an action for the abatement of a nuisance is similar to a purpose of standing requirements generally, namely, to insure that only those who have a substantial interest will be allowed to come into court to complain. ¹³ In Morse v. Liquor Control Commission (1947), 319 Mich. 52, 29 N.W.2d 316, the plaintiffs, who were members of churches alleged to be within 500 feet of the defendant liquor licensee, asserted that the sale of liquor by the licensee would constitute both a public and private nuisance. The plaintiffs brought the action in their own names, not on behalf of the churches to which they belonged. The Michigan Supreme Court discussed the law of public and private nuisance and concluded that the plaintiffs were proper parties plaintiff. In reaching that decision the Court necessarily ignored the fact that the plaintiffs did not themselves own property located within 500 feet of the churches.

In other cases as well it has been recognized that a nonprofit corporation may have standing to maintain an action to vindicate the interests of its members. ¹⁴

Having in mind the function of the standing requirement, we are satisfied that the plaintiff association has an adequate interest to entitle it to maintain this action to the extent it seeks abatement of a private nuisance.

II.

The Water Resources Commission Act Does Not Provide an

Exclusive Remedy

The trial judge relied on section 6(b) of the act ¹⁵ in holding that it provides the exclusive remedy against a municipality. Section 6(b) is concerned, however, with the discharge of raw sewage of human origin from land occupied by the land owner himself rather than with the discharge of sewage by a municipality. Section 6(b) seeks to confine the remedy against the city for 'permitting, allowing or suffering' land occupiers...